Wu v Nursing and Midwifery Board of Australia

NCAT Occupational|2021-05-24|Before: The Hon J, Boland AM

Introduction

Ms Yan Wu was refused provisional registration as a nurse by the South Australian Board of Nursing and Midwifery Board of Australia (the Board) on 1 December 2020. The Board's decision was notified to Ms Wu by letter dated 3 December 2020.
On 25 January 2021 Ms Wu filed a general law application form appealing the Board's decision. The form correctly identifies that Ms Wu seeks to appeal the Board's decision under s 175 of the Health Practitioner Regulation National Law (NSW) (the National Law). Ms Wu asserts she earlier mistakenly attempted to file an appeal in the Administrative Appeals Tribunal (Cth) (the AAT).
In these proceedings the Board is represented by the Australian Health Practitioner Regulation Agency (AHPRA). No objection is taken by the Board to the appeal being filed out of time or on a general law application form rather than an external appeal form.
Ms Wu seeks that her appeal be allowed and that she be granted "re-entry as a registered nurse". Ms Wu clarified her position at the hearing about the orders she sought, namely, that she be granted provisional registration so that she can complete a re-entry to practice course leading, on successful completion, to general registration as a registered nurse.
Ms Wu's application is opposed by the Board essentially on three bases. First, the Board maintains that Ms Wu has not engaged in the practice of nursing for over 10 years thus rendering her ineligible for provisional registration. Secondly, the Board asserts that Ms Wu's application for provisional registration demonstrates a lack of frankness because she failed to disclose criminal convictions and provided misleading information in her curriculum vitae, and thirdly that, by reason of her conduct, she is not a suitable person to hold registration. The latter position is adopted because the Board say Ms Wu's role as the sole director of Transcon Holding Pty Ltd (Transcon) demonstrates unsatisfactory conduct in the provision of aged care services. Transcon was an approved provider under the Aged Care Act 1997 (Cth) and traded under the registered business name AusCare Multicultural Home, Community & Disability Services. Transcon's status as an approved provider under the Aged Care Act was revoked on 29 November 2019. An application to the AAT for a stay of the Minister's decision was refused on 23 January 2020 (see Transcon Holding Pty Ltd v Aged Care Quality and Safety Commissioner [2020] AATA 90). Ms Wu says her appeal against the decision has been heard by the AAT and the decision is currently reserved.

Ms Wu's academic and nursing activities

The following facts, unless noted by us to be an assertion, are found by us to be established to the relevant civil standard.
Ms Wu was born in Shanghai, China in 1963. English is her second language. She is fluent in Mandarin. She is an Australian citizen.
In 1984 Ms Wu qualified as a registered nurse in China after being awarded a degree from the Nursing College of Shanghai Second Medical School, China.
Ms Wu asserts that, between 1984 and 1988, she engaged in practice as a full time registered nurse at Shanghai Yue Yang Hospital.
On 1 October 1988 Ms Wu arrived in Australia.
Between December 1988 and April 1989 Ms Wu asserts she worked on a part-time basis as an Assistant in Nursing at a private hospital, Elwin Private Hospital.
Between January 1990 and September 1990 Ms Wu asserts she worked as an Assistant in Nursing at "Strathfield nursing home".
Between October 1990 and December 1991 Ms Wu asserts she was a full-time trainee nurse at Prince Henry Hospital, NSW.
Ms Wu's application for registration discloses that she was first registered in NSW in 13 December 1991.
Between December 1991 and December 1993 Ms Wu was engaged in full time employment as a registered nurse at Prince Henry Hospital.
Between January 1994 and February 1995 Ms Wu asserts she was engaged as a full-time registered nurse at Sutherland Hospital, NSW.
Between March 1995 and March 1998 Ms Wu asserts she was engaged as a full-time registered nurse at Concord Hospital NSW. Records produced by Health Share NSW confirm her employment at Concord from 13 March 1995 to 15 March 1998.
Between October 1993 and June 2017 Ms Wu asserts she was engaged in a full time role as CEO of a business known as "The Asian nursing services". Overlapping these periods, at various times, she also asserts she was in full time roles with other organisations (Australian Health Care Centres, Uniting Care, Paraplegic and Quadriplegic Association of NSW).
Ms Wu also asserts she was engaged as a full time director of Transcon between June 2009 and June 2017. On 27 August 2020 Ms Wu informed the Board in writing that Transcon's ABN is 25 137 807 688. However, she later asserted that the letter provided was on an expired letterhead.
Ms Wu asserts, in her 2014 curriculum vitae, that between December 2000 and November 2001 she was employed as a Centre Manager for Uniting Care of Australia. She does not disclose the location of the centre. In her oral evidence she stated she was employed by Uniting Care at a nursing home at North Sydney.
On 30 September 2000 Ms Wu was awarded a Graduate Certificate in Marketing from the University of Technology, Sydney.
Ms Wu attained a MBA from the University of Technology on 15 May 2003.
Ms Wu asserts, in her 2014 CV, that between 2001 and 2002 she was a clinical consultant for the Paraplegic and Quadriplegic Association of NSW on a full time basis.
On 2 February 2011 Ms Wu was appointed as a Justice of the Peace. The appointment was valid until 1 February 2016.
In 2014 Ms Wu's registration as a registered nurse lapsed. Ms Wu asserts since that time she has been working as "an ex-registered nurse".
Ms Wu's lodged an application for registration in 2014. That application was refused. Ms Wu did not appeal against the refusal of registration.

Transcon Holding

In 1993 Ms Wu asserts she founded a multicultural aged care and disability business. Ms Wu asserts in a document entitled "Statement of Service" signed by her as "Director of Care" and dated 27 August 2020, that she commenced the business as a sole trader, that a company, Transcon Holding, was incorporated in 2009 and the business commenced trading under the business name AusCare Multicultural Home, Community and Disability Services. Ms Wu asserts her responsibilities in the business in her Statement of Service are as follows: "(1) I am responsible for all care workers' training and education and orientation. (2) I am responsible for all care assessments, consulting, analysing, evaluation and care plan development. (3) I am responsible for setting up goals and achievable outcomes. (4) I am responsible to chair all care conferences with the family and stakeholders. (5) I am responsible for all kinds of care plan development including behaviour care plan development and management. (6) I am responsible for dealing and liaising with other health, medical and allied health care professionals. (7) I am responsible for all registered nurses tasks such as administering medications, change dressings, injections, and any kind of nursing required to be proceeded at home. (8) I am responsible for all written reports, documentations, and participating in many strategic planning for the service users; (9) I am responsible for all kinds of policies and procedures (10) I am responsible for compliance; (11) I am responsible for continuous improvement."
Ms Wu in her Statement of Service under the heading "Your last day of actual working a shift" asserts "For this company, as of this date, I am working as an ex-registered nurse and doing all the above" (referring to her responsibilities as set out above).
In about 2016 Transcon was granted approved provider of home care service status under the Aged Care Act. On 15 August 2019 and re-confirmed on 6 December 2019, Transcon's approved provider status was revoked by a delegate of the Secretary of the Department of Health. The delegate's decision is the subject of an application for review by the AAT. The decision in the review application is reserved.
Ms Wu gave oral evidence that Transcon continues to operate "brokering" aged care services for an accredited aged care provider with remuneration divided as to 80 per cent to Transcon and 20 per cent to the aged care provider.

Traffic offences

On 6 August 2002 Ms Wu was charged with failing to produce her licence and exceeding the speed limit. She asserts she intended to attend the court "but missed the court hearing" as she was busy. She was fined and demerit points imposed.
On 6 October 2008 Ms Wu asserts she was mistakenly charged with assault and that the charge was dismissed in the Burwood Local Court.
On 23 November 2017 at the Burwood Local Court, Ms Wu was convicted of driving with a child unrestrained. She was fined and received demerit points. Ms Wu asserts she was busy and did not attend the court hearing.
On 11 October 2018 Ms Wu was charged and convicted in the Sutherland Local Court with driving while her licence was suspended. Her appeals against this conviction were dismissed.
On 5 April 2019 Ms Wu was convicted in the Burwood Local Court with driving whilst disqualified. Her appeal to the District Court was unsuccessful. Ms Wu asserts the Attorney-General, the Hon Mark Speakman SC, "annulled the conviction".

Current registration application

On 6 April 2020 Ms Wu applied to the Board for provisional registration.
In an email dated 26 August 2020 Ms Wu asserted to AHPRA that: "we can currently do the brokerage in aged care but not directly due to the revocation notice. We are also doing NDIS which we have no problems with. We do aged care brokerage services and NDIS NSW state-wide at moment, but we are not marketing our business at the moment, just too many things on the plate at moment, and not seeking expending [sic]"
On 1 September 2020 Ms Wu provided an updated curriculum vitae to AHPRA. She disclosed that from 24 April 2020 onwards she was engaged as a full-time director of Transcon. The document records that, from 1 July 2017 to 23 April 2020, she was the full time "GM" of Transcon. She also asserted from 22 June 2009 to 30 June 2017 she was "Director of Transcon full-time".
In documents provided on 15 July 2021 Ms Wu disclosed that, in 2017, following a legal dispute between herself and her former partner (who she describes as "my ex"), she "removed herself as the key personnel of the company" and on 1 May 2018 she became bankrupt but continued to work for Transcon as a volunteer. She resumed directorship of Transcon after 24 April 2020.

The appeal provisions

Although the decision to refuse Ms Wu provisional registration was made by the South Australian Board, the appeal is properly instituted in NSW as this is Ms Wu's principal place of residence (see s 175(2)(c) of the National Law)
The appeal is brought under s 175 of the National Law. Section 175 is a New South Wales provision found in Division 14A of the Part 8 of the National Law.
Section 175(1)(a) which is relevant to this appeal provides as follows: 175 Appellable decisions [NSW] (1) A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision - (a) a decision by a National Board to refuse to register the person;
Section 175A provides that the parties to any appeal are the person the subject of the decision (in this case Ms Wu) and the National Board that made the decision.
The Tribunal's powers after hearing the appeal are set out in s 175C as follows 175C Decision (1) After hearing the matter, the responsible tribunal may - (a) confirm the appellable decision; or (b) amend the appellable decision; or (c) substitute another decision for the appellable decision. (2) In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision. Note - This section is a Health Practitioner Regulation National Law provision (see section 202 of the National Law). Note - Section 203 of the Health Practitioner Regulation National Law is not applicable to New South Wales.
Section 175B provides that the Tribunal may make any costs order in the proceedings it considers appropriate.

Nature of the hearing

Although the legislation is silent on the nature of an appeal (as distinct from the language employed in respect of appeals under s 159 of the National Law), appeals under the provision have been dealt with by way of rehearing (de novo) appeals (see McMahon v Nursing and Midwifery Tribunal of NSW [2013] NSWNMT 4).
As the appellant, Ms Wu, bears the onus of proof and must establish her case to the appropriate civil standard. The standard of proof in professional disciplinary proceedings conducted under the National Law and its predecessors has generally been accepted to be on the balance of probabilities, as explained in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. The Full Court of the Federal Court in Sullivan v Civil Aviation Authority (2014) 226 FCR 555; [2014] FCAFC 93 has emphasised that a tribunal, as distinct from a court, is not bound to apply the Briginshaw standard to fact finding. Notwithstanding this observation, we must reflect, in making our findings on the evidence before us, the serious nature of those findings and their consequences.

The relevant registration provisions

It is useful at this point that we refer to the relevant registration provisions
Section 52 of the National Law sets out the eligibility for general registration. Those requirements are as follows: 52 Eligibility for general registration (1) An individual is eligible for general registration in a health profession if - (a) the individual is qualified for general registration in the health profession; and (b) the individual has successfully completed - (i) any period of supervised practice in the health profession required by an approved registration standard for the health profession; or (ii) any examination or assessment required by an approved registration standard for the health profession to assess the individual's ability to competently and safely practise the profession; and (c) the individual is a suitable person to hold general registration in the health profession; and (d) the individual is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for registration, or being registered, in the health profession; and (e) the individual meets any other requirements for registration stated in an approved registration standard for the health profession. (2) Without limiting subsection (1), the National Board established for the health profession may decide the individual is eligible for general registration in the profession by imposing conditions on the registration under section 83.
Section 55 deals with individuals whom a National Board may decide are not suitable to hold registration. The Board's decision is based on the factors set out in s 55(1). Section 55(1) is in the following terms: 55 Unsuitability to hold general registration (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if - (a) in the Board's opinion, the individual has an impairment that would detrimentally affect the individual's capacity to practise the profession to such an extent that it would or may place the safety of the public at risk; or (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or (c) the individual has previously been registered under a relevant law and during the period of that registration proceedings under Part 8, or proceedings that substantially correspond to proceedings under Part 8, were started against the individual but not finalised; or (d) in the Board's opinion, the individual's competency in speaking or otherwise communicating in English is not sufficient for the individual to practise the profession; or (e) the individual's registration (however described) in the health profession in a jurisdiction that is not a participating jurisdiction, whether in Australia or elsewhere, is currently suspended or cancelled on a ground for which an adjudication body could suspend or cancel a health practitioner's registration in Australia; or (f) the nature, extent, period and recency of any previous practice of the profession is not sufficient to meet the requirements specified in an approved registration standard relevant to general registration in the profession; or (g) the individual fails to meet any other requirement in an approved registration standard for the profession about the suitability of individuals to be registered in the profession or to competently and safely practise the profession; or (h) in the Board's opinion, the individual is for any other reason - (i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the profession competently and safely.
In this matter we discern the relevant provisions of s 55(1) relied on by the Board in opposing Ms Wu appeal are s 55(1)(b), (f) and (h)(i).
Section 62 sets out the requirements for provisional registration. It provides as follows: 62 Eligibility for provisional registration (1) An individual is eligible for provisional registration in a health profession, to enable the individual to complete a period of supervised practice that the individual requires to be eligible for general registration in the health profession, if - (a) the individual is qualified for general registration in the profession; and (b) the individual is a suitable person to hold provisional registration in the profession; and (c) the individual is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for, or being registered in, the profession; and (d) the individual meets any other requirements for registration stated in an approved registration standard for the health profession. (2) Without limiting subsection (1), the National Board established for the health profession may decide the individual is eligible for provisional registration in the health profession by imposing conditions on the registration under section 83.
Section 63 deals with unsuitability to hold provisional registration. It provides as follows: 63 Unsuitability to hold provisional registration (1) Section 55 applies to a decision by a National Board that an individual is not a suitable person to hold provisional registration in a health profession. (2) For the purposes of subsection (1), a reference in section 55 to general registration in the health profession is taken to be a reference to provisional registration in the health profession.
The National Law also sets out a practitioner's obligations when completing his or her application for registration. Section 77 provides as follows: 77 Application for registration (1) An individual may apply to a National Board for registration in a health profession for which the Board is established. (2) An application must - (a) be in the form approved by the National Board; and (b) be accompanied by the relevant fee; and (c) be accompanied by proof of the applicant's identity; and (d) be accompanied by any other information reasonably required by the Board. (3) Without limiting subsection (2)(a), a form approved by a National Board for the purposes of that subsection must require an applicant - (a) to provide a declaration about - (i) the address at which the applicant will predominantly practise the profession; or (ii) if the applicant will not be practising the profession or will not predominantly practise the profession at one address, the address that is the applicant's principal place of residence; and (b) to provide an address to be used by the Board in corresponding with the applicant; and (c) to disclose the applicant's criminal history; and (d) to authorise the Board to obtain the applicant's criminal history. Note - See the definition of criminal history which applies to offences in participating jurisdictions and elsewhere, including outside Australia. (4) A criminal history law does not apply to the requirement under subsection (3)(c) for the applicant to disclose the applicant's criminal history. (5) Information in the application must, if the approved form requires, be verified by a statutory declaration.
Criminal history and criminal history law are defined in s 5 of the National Law. Those definitions are as follows: criminal history, of a person, means the following - (a) every conviction of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law; (b) every plea of guilty or finding of guilt by a court of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law and whether or not a conviction is recorded for the offence; (c) every charge made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law. criminal history law means a law of a participating jurisdiction that provides that spent or other convictions do not form part of a person's criminal history and prevents or does not require the disclosure of those convictions.
The relevant law in New South Wales dealing with spent convictions is the Criminal Records Act 1991 (NSW). The operation and effect of the Criminal Records Act is explained in FDR v Medical Council of New South Wales [2021] NSWCATOD 168 at [26]-[35].
Section 82 of the National Law imposes a mandatory obligation on a National Board, to make a decision to either grant (with or without conditions) or refuse an application. Section 82 provides as follows: 82 Decision about application (1) After considering an application for registration and any submissions made in accordance with a notice under section 81, a National Board established for a health profession must - (a) decide to grant the applicant the type of registration in the health profession applied for if the applicant is eligible for that type of registration under a relevant section; or (b) decide to grant the applicant a type of registration in the health profession, other than the type of registration applied for, for which the applicant is eligible under a relevant section; or (c) decide to refuse to grant the applicant registration in the health profession if - (i) the applicant is ineligible for registration in the profession under a relevant section because the applicant - (A) is not qualified for registration; or (B) has not completed a period of supervised practice in the health profession, or an examination or assessment required by the Board to assess the individual's ability to practise the profession; or (C) is not a suitable person to hold registration; or (D) is disqualified under this Law from applying for registration, or being registered, in the health profession; or (E) does not meet a requirement for registration stated in an approved registration standard for the profession; or (ii) it would be improper to register the applicant because the applicant or someone else gave the National Board information or a document in relation to the application that was false or misleading in a material particular. (2) In this section - relevant section means section 52, 57, 62, 65 or 73.
Section 84 provides the Board must give notice of its decision to the applicant, and inform the applicant of his/her appeal rights.

Recency of practice standard

It is relevant we now refer the role and status of standards developed under the National Law by first referring to Part 2 of the National Law. This part deals with the Ministerial Council. The term "Ministerial Council" is defined in s 5 of the National Law as follows: Ministerial Council means the COAG Health Council, or a successor of the Council by whatever name called, constituted by Ministers of the governments of the participating jurisdictions and the Commonwealth with portfolio responsibility for health.
Section 11 of the National Law refers to the role of the Ministerial Council in respect of policies. The Ministerial Council's role includes giving of directions to a National Board about policies to be applied in exercising functions under the National Law (see s 11(2)).
The Ministerial Council has discretion to approve (or refuse) a standard about "the registration, or renewal of registration, of persons in a health profession" (see s 12(1)).
Section 12(2) refers to the criteria about which the Ministerial Council must be satisfied if it is to approve a registration standard.
An accreditation standard for a health profession is a standard used to assess whether a program of study, and the education provider that provides the program, provides persons who complete the program with the knowledge, skills and professional attributes to practise the profession in Australia. Accreditation standards are developed and approved under Division 3 of Part 6 .
Section 38 of the National Law imposes a requirement on National Boards, including the Board, to develop standards. As Ms Wu's challenge to the Board's interpretation of the Nursing and Midwifery Board of Australia, 'Registration standard: Recency of Practice' (1 June 2016) (the practice standard) forms the essential plank of her appeal, it is relevant that we set out s 38 in full: 38 National board must develop registration standards (1) A National Board must develop and recommend to the Ministerial Council one or more registration standards about the following matters for a health profession for which the Board is established - (a) requirements for professional indemnity insurance arrangements for registered health practitioners registered in the profession; (b) matters about the criminal history of applicants for registration in the profession, and registered health practitioners and students registered in a health profession for which the Board is established, including, the matters to be considered in deciding whether an individual's criminal history is relevant to the practice of the profession; (c) requirements for continuing professional development for registered health practitioners registered in the profession; (d) requirements about the English language skills necessary for an applicant for registration in the profession to be suitable for registration in the profession; (e) requirements in relation to the nature, extent, period and recency of any previous practice of the profession by applicants for registration in the profession. (2) Subject to subsection (3), a National Board may also develop, and recommend to the Ministerial Council, one or more registration standards about the following - (a) the physical and mental health of - (i) applicants for registration in the profession; and (ii) registered health practitioners and students; (b) the scope of practice of health practitioners registered in the profession; (c) any other issue relevant to the eligibility of individuals for registration in the profession or the suitability of individuals to competently and safely practise the profession. (3) A registration standard may not be about a matter for which an accreditation standard may provide. Note - An accreditation standard for a health profession is used to assess whether a program of study, and the education provider that provides the program of study, provide persons who complete the program with the knowledge, skills and professional attributes to practise the profession. Accreditation standards are developed and approved under Division 3 of Part 6.
Also relevant to Ms Wu's appeal is the Nursing and Midwifery Board of Australia 'Registration Standard: Criminal History' (1 July 2015) approved by the Ministerial Council on 17 March 2015.
Section 39 of the National Law permits a National Board to develop codes and guidelines to provide guidance to registrants. Relevant to this appeal are the Nurses and Midwifery Board of Australia, 'Policy: Re-entry to practice for nurses and midwives' (11 February 2019) (the policy) and the Nurses and Midwifery Board of Australia, 'Fact sheet: Re-entry to practice' (11 February 2019) (the Fact sheet). These two latter documents do not have legislative force in the determination of an application for provisional registration but are designed to inform and guide applicants
Also relied on by the Board is the Nursing and Midwifery Board, 'Registered Nurses Standards for Practice' (1 June 2016). A mapping template was completed by Ms Wu. The mapping template is based on this Standard. .
In support of her appeal Ms Wu relies on the information set out in par 1 of the policy and the diagram in Figure 1. This paragraph explains as follows: "People who have not practised as a nurse or midwife for between five and ten years and who do not hold registration, are required to lodge an application for provisional registration. The assessment of the application will determine whether the applicant will be required to demonstrate successful completion of: a period of supervised practice approved by the NMBA (Pathway 1), or an NMBA approved re-entry to practice program (Pathway 2) (see the definitions for supervised practice and NMBA-approved programs of study)."
We observe that Ms Wu does not refer to the summary appearing immediately above par 1 which informs a reader that the practice standard should be read in conjunction with the policy. Under the heading "What happens if I don't meet this standard?" and the sub-heading "other possible consequences" the practice standard explains that conditions can be imposed on a practitioner's registration or the registration can be refused.

Issues to be determined in this appeal

We discern the following issues are raised for determination in this appeal: 1. When did Ms Wu last engage in the practice of nursing? This raises the issue of whether Ms Wu's roles at Australian Health Care Centres, Uniting Care, Paraplegic and Quadriplegic Association of NSW, and as director of Transcon and its forerunner business mean she was engaged in the practice of nursing as recognised in the practice standard. 2. Does Ms Wu have criminal convictions? Did she fail to properly disclose criminal convictions in her application for registration? 3. Are the discrepancies in Ms Wu's curriculum vitae submitted in 2014 and the discrepancies in her two most recent curriculum vitae (5 April 2020 and 1 September 2020) cogent and relevant to her application? 4. Is the withdrawal of accreditation by the Commonwealth Government to Transcon a relevant factor to be taken into account in determining Ms Wu's application for provisional registration? 5. Associated with the issues identified in (2)-(4) is whether Ms Wu is a suitable person to hold registration. 6. Finally, whether there are any suitable conditions which could be imposed which would enable Ms Wu to gain provisional registration? (see ss 62(2) and 83 of the National Law).

Ms Wu' application for provisional registration and evidence in support of her appeal

In support of her appeal Ms Wu relies on her application for provisional registration. Ms Wu states in her application: "Previously was registered in general nursing since 1991, while being a registered nurse, I also started in aged care, child care and NDIS services. It will be nice to get my rego back to meet new standards requirement, I wish to cover clinical and non-clinical for meeting standard requirement, but in return, I am willing to work a few hours a week to meet rego requirement. Also help out for Covid-19 if called."
In her submissions in support of her appeal, Ms Wu explains that her registration lapsed in 2014 whilst she was on holiday. She states "after 2014 I was still doing nursing but with no valid registration". She also states "As of this date, I am still doing a lot of nursing , and training nursing workers, and often hands on if I have to".
After submissions in which Ms Wu refers to the role of community nurses, she notes that, if granted registration, she would be required to go through a re-training course. She submits that AHPRA has unfairly pre-judged her capacity to satisfactorily complete a re-training program and is denying her having "a fair go".
Ms Wu addresses the re-entry policy in her material. She notes that the re-entry course will involve a payment of $15,000 and the necessity to complete assessments. She explains again that she is committed to working four to six hours per week on a Saturday working in a hospital if she gains re-entry. It appears this proposed commitment is in response to the requirement of participating in at least 20 hours of professional development per year and maintaining 450 hours of practice (being the hours set out in the practice standard).
At par 48 of her statement, Ms Wu acknowledges that her registration lapsed in 2014 but asserts "I continue practised since 2014 to present as a community nursing educator". She points to courses she has voluntarily undertaken.
Ms Wu submits that she should be considered as being in the position of "not registered and not practised 5-10 years" for the following reasons: 1. the lapse in her registration occurred in 2014; 2. between her hospital years to 2014 "I had registration and I was doing nursing in the community after I left hospitals". 3. That the board argues that nursing in the community is not nursing but Ms Wu says: "…community nursing is nursing. For example: 1) Working in clinics 2) Working in day surgeries 3) Working in medical centres 4) Working for hospital at home programs etc. v. I am saying that these jobs are serious nursing jobs but in the community"

The Board's evidence

The Board relied on the Affidavit of Daniel Hillary affirmed 14 April 2021. Mr Hillary annexed to his affidavit the practice standard, policy and fact sheet as well as the email correspondence between officers of AHPRA and Ms Wu and documents provided by Ms Wu.
The Board's reasons for refusing Ms Wu's provisional registration at its meeting on 6 November 2020 were conveyed to her by letter dated 3 December 2020. This letter appears to be a duplicate of a letter dated 1 December 2020 which invited Ms Wu to make submissions by 31 December 2020. It is not clear to us why a letter was sent to Ms Wu on 3 December 2020 confirming that her application for provisional registration was refused before the period in which she could make submissions had expired.
However, Ms Wu does not wish to challenge the decision on this basis but rather to address the matters she agitates in support of her appeal. We also note that the third paragraph of the letter forwarded to Ms Wu notes the Board "met on Click here to enter date". This administrative error is regrettable particularly given the long history of the matter and the number of documents required by the Board to consider Ms Wu's application.
The gist of the Board's refusal of Ms Wu's application for provisional registration is set out in its letter dated 3 December 2020 namely: 1. The nature, extent, period and recency of previous practice is insufficient to meet the requirements for registration as set out in the practice standard because 1. Ms Wu last practised as a registered nurse 22 years ago; 2. although Ms Wu worked in a role providing Aged Care and Disability Services she had not demonstrated the service met the "domains of practice" as contained in the Registered nurse standards for practice set by the Board; 3. Ms Wu had not undertaken any program or assessment approved by the Board in the last five years; and 4. Ms Wu had not undertaken any supervised practice experience approved by the Board in the last five years. 1. Ms Wu is not a suitable candidate for re-entry or supervised practice. This is because of the significant period of time away from the profession and as well absence of any continuing professional development related to nursing is significant. A re-entry course would be insufficient to bridge the significant knowledge gaps to practise completely and safely in the profession.

The Board's submissions

The Board provided comprehensive written submissions opposing Ms Wu's appeal.
The submissions refer to the fact that Ms Wu's application for registration lapsed on 3 July 2014 by reason of her failure to renew her application. The submissions note that Ms Wu applied for registration on 29 August 2014 but Ms Wu was advised on 14 November 2014 that the Board proposed to reject her application on several bases including that she had not practised as registered nurse for 15 years. Ms Wu was given the opportunity to make submissions but did not do so and her application was refused on 30 December 2014.
The submissions then set out the history of Ms Wu's application for provisional registration made on 6 April 2020 and communications between her and the Board
The submissions note that: "On 30 June 2020, Ahpra's clinical assessment team assessed Miss Wu's application for registration having regard to the mapping template response, the 2020 CV and the two statements of service provided by Ms Wu. The clinical assessment team indicated that Miss Wu would be eligible for provisional registration, however this assessment was undertaken without reference to key documentation and information. "
The submissions note a further review of Ms Wu's file occurred following "an internal handover of her case at Ahpra" which discovered: 1. Discrepancies between Ms Wu's 2014 CV and the one provided in 2020. 2. The statement of service from Auscare was signed by a person with the same last name as Ms Wu and contained an incorrect and cancelled ABN. 3. An internet search for Auscare on the "Myagedcare.gov.au" website revealed the loss of provider status for failure to meet aged care provider standards.
The submissions then address the issue of whether Ms Wu satisfies the practice standard. At par 40, the submissions note, correctly, that Ms Wu does not assert she has completed any approved program or assessment or a period of approved supervised practice.
It is submitted that Ms Wu's evidence "does not identify the nature and extent of the work said to have been undertaken over the relevant period that would meet the standard" and notes a lack of independent documentary evidence to establish that she has worked in any relevant role in excess of 450 hours". . It is submitted "Ms Wu herself acknowledges that she does not meet the standard." The submission footnotes Ms Wu's submissions in reply dated 5 May 2021 at par 38. We pause to note we are unable to accept this submission. We do not find Ms Wu's statement can be given the wide interpretation advanced in the Board's submissions. Ms Wu states: "For this part, the applicant understands that she does not [sic] clinical requirement as the courses attended by the applicant, were not the credited courses by the board."
We read this response of Ms Wu to relate to "successful completion of a program or assessment approved by the NMBA" not a reference to 450 hours of practice within the past five years.
The thrust of the submissions on the issue of meeting the practice standard is that Ms Wu's evidence and material do not demonstrate that she has been engaged in "practice" in the last ten years.

Recency of Practice Issue

The relevant practice standard is dated 1 June 2016
Under the Heading "What must I do?" the practice standard does not answer the question it poses, but rather states relevantly for this application that practice hours will be recognised if the candidate: 1. holds or has held current and valid registration with a recognised nursing or midwifery regulatory authority (either in Australia or oversea); 2. has a role that involves the application of nursing and/or midwifery skills OR 3. has carried out postgraduate education leading to an award or qualification that is relevant to the practice of nursing and/or midwifery.
Ms Wu acknowledged before us, and the Board accepted that Ms Wu has held valid registration in Australia up until 2014. Ms Wu does not assert she has engaged in post-graduate education leading to an award relevant to nursing and/or midwifery. But she claims her role prior to 2014 and post 2014 involved the application of nursing skills.
The Board acknowledges two main areas of practice in the profession for the purpose of the practice standard and requires an applicant for registration to establish one or more of the following: 1. Completion of a minimum of 450 hours of practice within the past five years 2. Successful completion of a program or assessment approved by the Board 3. Successful completion of period of supervised practice approved by the Board.
To fully understand these requirements, reference to the policy is necessary. The policy explains if an applicant has not practised as a nurse or midwife and not held registration for between five and ten years, such a person must apply for provisional registration. A person who has not practised for ten years or more must complete the degree requirements for general registration.
Under the sub-heading "Nurses and Midwives in non-clinical practice" the practice standard states: "Nurses and midwives working in non-clinical practice are required to meet the recency of practice standard. If you have recent clinical practice you are deemed to be recent in non clinical practice".
The practice standard next poses the question "What happens if I don't meet the standard?" The document then deals with nurses, such as Ms Wu, who seek to work in clinical practice but do not meet the standard. The standard notes that "depending on the length of absence" the applicant "must meet different requirements." The paragraph refers to the policy.
The definitions in the practice standard are relevant to its interpretation. Relevant to this appeal are the following: "Non-clinical practice is where a nurse or midwife is not directly involved in providing direct clinical care or providing oversight of direct care of patients or is not directly involved in clinical education of either pre-registration or post registration, including bridging programs. Practice means any role, whether remunerated or not, in which the individual uses their skills and knowledge as a health practitioner in their profession. Practice in this context is not restricted to the provision of direct clinical care. It also includes using professional knowledge (working) in a direct non-clinical relationship with clients, working in management, administration, education, research, advisory, regulatory or policy development roles, and any other roles that impact on the safe, effective delivery of services in the profession. Recency of practice means that a health practitioner has maintained an adequate connection with, and recent practice in the profession since qualifying for, or obtaining registration."
As discussed above, also relevant is the policy. The policy applies to persons, including those who have held registration and who are seeking to return to clinical or non-clinical practice and do not meet the standard, because they have had a lapse in practice of five years or more, or are no longer on the register.
The policy first deals with persons who like Ms Wu, are no longer on the register and who have not practised for a period of between five to ten years. Such applicants must apply for provisional registration (as has Ms Wu) and must either complete a course of supervised practice or an approved re-entry program. An applicant such as Ms Wu is required to provide "mapping" in accordance with the Board's template. It is not in dispute that Ms Wu was requested to and did provide answers to the mapping template.
The policy also deals with persons who have not practised for 10 years or more. Such persons must complete an approved program of study leading to general registration. We pause to note this is the position adopted primarily by the Board in respect of Ms Wu's registration.
The policy also contains a number of definitions, including a definition of clinical practice.
Included in the material relied on by the Board is a copy of a Fact sheet. The Fact sheet refers to the type of evidence necessary to demonstrate continuing professional development. It also details the type of evidence necessary to demonstrate paid or voluntary nursing and/or midwifery practice. We note it is recommended that information provided include: "Statement of service from each employer/s that includes position held, the number of hours worked (full-time/part-time) and how the role/s involved the application of nursing and/or midwifery practice" as well as "details of your role, particularly where the title of the position does not include 'nurse' or 'midwife'".
We find, as did the Board, that there are discrepancies in Ms Wu's three curriculum vitae submitted firstly in 2014, then in April and September 2020. The documents are confusing because Ms Wu asserts an overlap in positions she asserts were full time positions. The discrepancies between the 2014 and the 2020 documents are asserted by Ms Wu to be because she did not keep a copy of her 2014 document. The discrepancies about the periods in which she asserts she worked for Uniting Care and the Paraplegic & Quadriplegic Association raise doubts about the veracity of her evidence. We note that in her first curriculum vitae she states she worked at Uniting Care between 2000 - 2001 and in her second curriculum vitae that her employment for that organisation was between 2006 - 2010. Similarly, she asserts employment as a consultant for the Paraplegic & Quadriplegic Association of NSW between 2001-2002 in her first curriculum vitae and that she was employed as a clinical consultant between 2010-2012 in her second curriculum vitae.
We find Ms Wu initially did not provide corroborative evidence, as recommended by the Board in the Fact sheet, of her employment as a registered nurse. Any corroborative evidence of her work after 1998 is notably absent except the statements of service in respect of Transcon and referred to generally in documents provided to the AAT in support of the review application. Ms Wu and her sister are the respective authors of the Transcon documentation.
Ms Wu's evidence of the nature of the work carried out between 1998 and 2014 is scant. Her written evidence is that she engaged in work of an administrative nature in aged care or disability care for Uniting Care and the Paraplegic and Quadriplegic Association for some periods, and from about 2013, she engaged in some form of management role in aged care provision through Transcon or its predecessors. In her oral evidence, Ms Wu explained that at the Paraplegic and Quadriplegic Association she was employed as a clinical consultant, and although she did not provide direct nursing services, that she authorised clients' "clinic procedures, what kind of products they need, what kind of personal care products they need, what kind of care procedure they need and what kind of treatment they need" (Tcpt, 24 May 2021, p 25).
In respect of her role at Uniting Care, Mr Wu said: "I was their centre manager. It's a retirement village as centre manager. And being a centre manager, I cover all the nursing duties as well so I'm the only registered nurse. One of the requirement - sorry one of the requirement to be the centre manager has to be a registered nurse background with required nursing skill to be the centre manager so I can cover nursing care, clinical care part of the duties in the retirement village [Tcpt, 24 May 2021, p 24]"
She also gave oral evidence that she undertook "a big clinical role" as manager for Australian Healthcare Service, Kingsgrove where she was engaged in nursing giving injections, and dressings as well as staff management and rosters for doctors. Ms Wu referred to this employment in her 2014 curriculum vitae as being between 1999 - 2000.
Ms Wu conceded in cross-examination that the work she undertook for Transcon in developing care plans for clients was work of a nature frequently carried out by social workers.

Does the work carried out by Ms Wu from 1995 to 2014 constitute practice?

Ms Wu does not submit that during the period 1998 to 2014 that she was engaged in direct full time clinical practice other than at Allied Healthcare. Rather, she submits that her work for various employers including Transcon, constituted "practice" as defined in the practice standard, namely, that she was engaged in work which was remunerated in which she used her professional knowledge working in a direct non-clinical relationship with clients, that she worked in management and administration roles that had an impact on the safe, effective delivery of services in the profession. Although she did not provide corroborative evidence of her employment as Centre Manager for Australian Health Care Service we accept that in this role between 1999 and 2000 she was engaged in the practice of nursing.
We are concerned by the lack of specificity of Ms Wu's evidence relevant to the period from 2000 to 2014 or any independent corroboration of her work. We do accept that she did undertake professional development during this period some of which had direct relevance to aged care (Dementia training course in 2004, the role of the Public Guardian, a forum for Attendant Care Service providers in 2011, Kindness at end of life: Little Acts Big impacts, Specialist Mental Health Service for Older people 9 October 2013, Health Audit Training in December 2010, Introduction to Traumatic Brain Injury on behalf of AusCare in March 2007 and NSW Motor Accidents Authority and Service Providers workshop in March 2014).
We accept that the type of work she asserts she undertook for Uniting Care satisfies the definition of practice in the standard. However, it is of concern that Ms Wu provides three different periods for her employment by Uniting Care (2014 curriculum vitae 2000-2001, first 2020 curriculum vitae 2006-2010, second 2020 curriculum vitae 2000-2001). We find that Ms Wu amended her first 2020 curriculum vitae only after discrepancies between her April 2020 document and her 2014 document were pointed out by the Board. We conclude, taking the most benevolent interpretation, that the first 2020 curriculum vitae was either prepared with disregard for its accuracy, or was more likely an attempt to suggest more recent practice until shortly prior to the lapse in her registration in 2014.
We accept that the work undertaken for the Paraplegic and Quadriplegic Association appears to have some linkage to the provision of "practice" as defined in the standard. Again it is of considerable concern that Ms Wu provides three different dates she asserts she engaged in this employment (2014 curriculum vitae 2001-2002, first 2020 curriculum vitae 2010-2012, second 2020 curriculum vitae 2002-2004). Our findings in respect of her employment for Uniting Care are repeated in respect of this employment.
Thus, albeit with some reservation, and noting that the information provided by Ms Wu to the Board did not comply with the policy requirements, we accept that Ms Wu was engaged in practice (as defined in the standard) during the period 1999 to 2002. We do not find the dates set out in the first 2020 curriculum vitae are accurate or reliable and we disregard them.
We agree with the submission of the Board that the type of services provided by Ms Wu in her managerial role for Transcon Holding and its predecessor home care service do not meet the definition of "practice" in the practice standard. While we accept Ms Wu's evidence that she prepared care plans for clients, it is clear on her own evidence such plans are frequently prepared by social workers and occupational therapists. To the extent she used her nursing knowledge we do not find this was the predominant role in which she was engaged in a managerial position for Transcon. It is clear from Ms Wu's evidence that once she obtained her MBA her focus was development of her managerial skills and the management of all aspects of the business of Transcon was her predominant role.
We note however, Ms Wu was registered at all times up to 2014. She could, at any point in time from her first registration until her renewal application in 2014, have engaged in practice as a registered nurse. We do not accept that Ms Wu's practice, as defined in the practice standard, ceased in 1998. However, the generalised uncorroborated evidence before us in respect of her work after 2000 does not enable us to be satisfied that she was engaged in the practice of nursing until 2014. Thus, because she was registered, we do not find Ms Wu falls into the category of not registered for more than ten years. However, for the purpose of assessing her nursing skills for provisional registration our conclusions about lack of practice from about 2000 are relevant.
We turn to consider if Ms Wu meets the standard applicable to nurses who were registered, but have not engaged in clinical practice for a period of five to ten years. Ms Wu provided no corroborated evidence that she completed 450 hours of practice within the last five years. Also relevant to this topic is the strength of Ms Wu's answers to the mapping questionnaire and an assessment about whether those answers, absent other disqualifying factors, means that Ms Wu should be granted provisional registration and eligible to undertake a Board approved re-education course. We note the policy provides an applicant who wishes to engage in clinical practice and who does not meet the practice standard is required to complete a mapping questionnaire.
We have examined Ms Wu's answers to the mapping questionnaire. It is relevant to note that this questionnaire was completed by Ms Wu by reference to the service her company has provided principally to aged care clients. She did not disclose that, in 2019, Transcon's accreditation had been revoked.
The answers provided in the mapping questionnaire are principally directed to issues of service provision. For example in response to question 1.7 which poses the question "contributes to quality improvement and relevant research" she refers to such matters as "arranging housing and applying for disability support", "chase their lawn mower man's invoice". The majority of her answers to the mapping questionnaire do not support Ms Wu's submission that her management role is one linked to the practice of nursing.
Ms Wu, in answer to question 2.8 "participates in and/or leads collaborative practice", she discloses that "once we take a client discharge from hospital, and take the hand over of injection, dressing or catheter etc 1. I will take on the nursing part of the tasks". In further response to this question, Ms Wu states "Not only am I acting as a nurse but also I am acting as a case manager for the client".
We find Ms Wu's answers to the mapping questionnaire do not support her assertion that she engages in practice which is consistent with the definition of practice in the practice standard. It is likely that she has, at least on occasions, engaged in providing professional services which properly should be provided by a registered nurse or a registered enrolled nurse.
We further find that on Ms Wu's own evidence, during the period of her bankruptcy, she did not assume a management role in Transcon but rather worked as a "volunteer", although in other documents she refers to her being the "GM" in this period (we infer she means General Manager). We discuss this further below.
In her documents filed on 15 July 2021 Ms Wu relies on a statement on the letterhead of AusCare Multicultural Services dated 18 January 2020 addressed "To Whom it May Concern". At par 35 Ms Wu states "in 2017 I removed myself as key personnel of the company". She goes on to state that, on 1 May 2018, she became bankrupt and refers to seeking annulment of her bankruptcy in 2019. She asserts during this period she worked as a volunteer. On 20 January 2020 Ms Wu's solicitors wrote a letter in which they noted that annulment of her bankruptcy should be completed shortly.
Overall, we are not satisfied in the period from 2014 when Ms Wu was in a managerial role in Transcon, or earlier when the business operated as a sole trader, that the services in which she engaged met the definition of practice in the practice standard, nor does the material in the mapping template support that Ms Wu was engaged in practice as defined in the practice standard and the policy. In making this finding we accept she did, as part of her overall management role, provide some nursing services while not registered, but she has not provided sufficient evidence to satisfy us that those parts of her managerial role in which she utilised her nursing skills satisfy the definition of practice in the practice standard.
In fairness to Ms Wu before leaving this topic, we accept that she was confused by the policy and in particular par 1 and Figure 1 of that document and thought provisional status was automatic and general registration would follow if she successfully completed the Board approved re-entry to practice program. Ms Wu failed to appreciate that the policy makes it clear under the heading "Summary" that the practice standard applies to nurses seeking to re-register and should be read in conjunction with the policy.
We further note the practice standard does explain that registration may be refused. Further, when reference is made to the Facts Sheet, it is clear that the Board must be satisfied that an applicant is safe and competent to practise the profession, and that provisional registration may be granted or refused. Of prime relevance on the issue of registration are the provisions of ss 62, 63 and 55 of the National Law which we have set out earlier in these reasons.

Ms Wu's convictions

We have earlier set out a summary of a number of convictions for traffic offences committed by Ms Wu.
The Board obtained, as it is mandated to do under s 79 of the National Law, a copy of Ms Wu's criminal history. Ms Wu was invited by the Board to provide details of her criminal history.
We note that the 'Registration Standard: Criminal History' standard sets out with particularity the requirements of disclosure of every conviction of the person for an offence, every plea of guilty or finding of guilt by a court for an offence and every charge. Spent convictions must also be disclosed.
Ms Wu submits that she did not breach the standard by failing to disclose her traffic offences. She asserts that these are not criminal offences.
Ms Wu has convictions including a conviction which was unsuccessfully appealed to the District Court on 29 November 2019 for driving whilst disqualified. No evidence of annulment of that conviction was adduced by Ms Wu. She also has not less than seven offences for driving whilst disqualified or whilst her licence was suspended. These offences are offences under the Road Transport Act 2013 (NSW) (see ss 53 and 54) and may be punishable by imprisonment.
We find that Ms Wu failed to provide full and proper disclosure of her conviction history and charges. We accept, however, that she did obtain an Australian Federal Police check and provide that document to the Board.
Ms Wu sought, in her oral evidence and submissions, to suggest her traffic offences were minor and to "downplay" the serious nature of her offences. We find Ms Wu's attitude to her offences is demonstrated by her failure to attend court on the basis she was too busy. This attitude does not demonstrate the type of behaviour expected of a registered health practitioner.

Discrepancies in Ms Wu's three curriculum vitae

We have earlier referred to the significant discrepancies in the three curriculum vitae provided to AHPRA by Ms Wu.
It is submitted on behalf of the Board we should find that Ms Wu provided false and misleading evidence to the Board both in respect of her various curriculum vitae and her disclosure of her criminal history.
Ms Wu submits that the errors in her curriculum vitae were due to the lapse of time since she prepared her 2014 document. We have already discussed her explanation for her failure to disclose details of all her convictions.
As we have already explained, we find, giving the most benevolent assessment to Ms Wu's evidence, that she was careless or indifferent to being accurate in providing relevant and important information to the Board, or that it is likely she sought to bolster her claim of recent relevant practice.
The Board must be entitled to rely on the accuracy of information provided when considering applications for registration. Accuracy and proper disclosure are necessary to ensure only those appropriately qualified, who have engaged in relevant professional development, and who are fit and proper persons to practice are registered in the important role of a health professional. .This is in accordance with the objective and principles of the National Law set out in ss 3 and 3A of that law.
Ms Wu's failure to check records, or to provide corroborative evidence of employment other than her hospital employment is of concern and does not reflect careful or serious attention to her application. Ms Wu is not lacking in intelligence or skills as demonstrated by her post-graduate qualifications including her MBA. We find the discrepancies in her three documents provided to AHPRA do not instil confidence that her disclosures were accurate and reliable. .

Ms Wu's role in Transcon

Ms Wu initially objected to the admission into evidence in these proceedings of the following documents: 1. Myagedcare "Notice of Non-compliance, Notices to Agree and Sanctions in Auscare" dated 22 January 2019. 2. Australian Government, Department of Health Revocation of Approved Provider Status. Notice of Revocation of Approval s 10 - 3 (7) Aged Care Act 1997 dated 8 August 2019. 3. Australian Government, Department of Health. Reconsideration of decision to Revoke the approved provider Status of Transcon Holdings Pty Ltd. Dated 29 November 2019. 4. Australian Government, Department of Health Revocation of Approved Provider Status. Notice of Revocation of Approval s 10 - 3 (7) Aged Care Act 1997 dated 6 December 2019.
Ms Wu in her material refers to these documents being relevant to "another Court". We infer that Ms Wu is referring to the right of Transcon to apply to the AAT to review the decision of the delegate of the Secretary of the Department of Health. We drew the parties' attention to the fact that a publicly available decision of the AAT (Transcon Holding Pty Ltd v Aged Care Quality and Safety Commissioner) reveals that Ms Wu appeared on behalf of Transcon to seek a stay of the revocation decision which was refused by Senior Member C Puplick AM.
We determined to admit these three disputed documents referred to above into evidence together with additional material filed by Ms Wu. In so doing we had regard to the following matters. First, cl 2 of Schedule 5D of the National Law which provides, in any proceedings including this appeal, the Tribunal is not bound to observe the rules of law governing the admissibility of evidence "but may inform itself of any matter in the way it thinks fit".
Secondly, we had regard to cl 5 of Schedule 5D of the National Law, which permits the admission into evidence the judgment or findings of a Tribunal.
Thirdly, we carefully weighed the admission of documents pursuant to Schedule 5D, cll 2 and 5 with the principles of procedural fairness and natural justice (see Kioa v West (1985) 159 CLR 550; [1985] HCA 81). We are satisfied that there was no procedural unfairness to Ms Wu in admitting the disputed documents. Mr Wu was on notice from 22 May 2020 that AHPRA sought further information from her about her employment with Transcon. Ms Wu provided a statement dated 20 May 2020 signed by Ms Bing Wu who describes herself as the sole shareholder of the company. Ms Bing Wu sets out Ms Wu's responsibilities for the company. We note that this list of responsibilities is broadly identical to those set out by Ms Wu in the statement on Transcon letterhead which she signed on 20 August 2020. Further, it is the nature of the work she has undertaken for Transcon on which she relies to support her recency of practice claim.
After the initial hearing Ms Wu sought to re-open the proceedings and to provide further evidence in respect of Transcon and, in particular, her review application before the AAT. In order to be procedurally fair to Ms Wu we granted that application and she filed a number of documents relied on in the review application in the AAT. The Board did not seek to file any material in reply or to cross-examine Ms Wu on the further documents received.
We accept that the relevant Commonwealth authority has found a number of deficiencies in the business conducted by Transcon. Included in the delegate's decision are findings of non-compliance with Home Care Standards from 2018, that Ms Wu, the company's key personnel, is an undischarged bankrupt, inappropriate management of clients' home care packages, a failure to address consumer complaints, and correspondence and reports disclosing an unwillingness or inability to engage with the quality improvement process.
We are conscious that in her capacity as director of Transcon, Ms Wu has sought a review of the delegate's decision and expresses confidence that her review application will be successful.
Whilst it would have been ideal if the AAT's decision had been available to us, neither party sought that we should delay our determination of Ms Wu's appeal pending the AAT decision.

Conclusions - Transcon

We note that the Board place some weight on Ms Wu's role in Transcon and the deficiencies identified by the delegate for the Minister in rejecting her application. We have also given some weight to the matters raised by the delegate of the Secretary, Department of Health but they are not pivotal to our decision.
We accept Ms Wu's evidence that it is her intention, if she gains full registration, to work very limited hours as a registered nurse, but rather she wishes to continue her role as an NDIS provider and an aged care broker. She acknowledged it was a department requirement that the company employ a registered nurse and said Transcon presently employs a registered nurse on a casual basis. We find this is her principal motivation for seeking registration.

Could appropriate conditions be imposed on Ms Wu's provisional registration?

This topic was not addressed in the appeal. We are conscious that this is an appeal de novo and it is our task to consider whether on the material now before us Ms Wu should be granted provisional registration.
In Chinese Medicine Board of Australia v Lee [2014] QCA 149 the Queensland Court of Appeal considered the situation where a practitioner did not meet requirement for general registration. The Court of Appeal held that, notwithstanding the requirements in s 52(1) of the National Law were not met, that relying on s 52(2) registration could be achieved by imposing appropriate conditions on the practitioner's registration.
We note that s 62(2) contains an identical provision to s 52(2).
We accept that, in an appropriate case, a person who does not meet a registration standard for provisional registration, may, by the imposition of appropriate conditions, gain that registration.
In this case we were satisfied that,the period of time since Ms Wu last practised nursing, and referred to in the practice standard there have been substantial changes in the practice of nursing. We accept Ms Wu is willing to pay the not inconsiderable sum necessary to undertake the re-entry course if granted provisional registration and to undertake the studies involved in the course.
While Ms Wu referred to the current shortage of skilled nurses due to the COVID 19 pandemic, she did not indicate that she wishes to engage again in nursing as a full time occupation, but explained she sought registration and that she would engage in practice for the minimum number of hours required to maintain general registration. We found her principal reason for seeking registration is to facilitate Transcon's eligibility as an accredited aged care provider
We were not apprised of any conditions, in addition to completing a re-entry course, which would enable Ms Wu to overcome her lack of up to date skills to ensure the health and safety of the public. Ms Wu is not precluded from again seeking provisional registration subject to conditions if she is able to propose conditions which would ensure the health and safety of the public while she is provisionally registered.

Overall conclusions

We are satisfied that Ms Wu has not satisfied the onus she carries in this appeal to establish that she has engaged in the practice of nursing during the last five to ten years as defined in the practice standard. Further, we find that Ms Wu's cavalier attitude in failing to provide proper disclosure to the Board means that she is currently not a fit and proper person to hold provisional registration

Costs

The Board seeks an order that Ms Wu pay its costs of and incidental to the proceedings. We accept that on filing her application Ms Wu mistakenly believed costs were governed by s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) and not the National Law.
The power to award costs is governed by s 175B of the National Law which we have set out above. Ms Wu has been unsuccessful in her appeal. She does not raise any relevant special or exceptional circumstance which would warrant a departure from the usual practice that "costs follow the event". We note that principles in respect of costs in disciplinary matters are well known (see Health Care Complaints Commission v Philipiah [2013] NSWCA 342). While these are not disciplinary proceedings and the award of costs is discretionary, no relevant matter was raised before us other than the Board's position that it has incurred costs and been successful. Accordingly we propose to order that Ms Wu pays the Boards costs as agreed and failing agreement as assessed.

Orders 1. The decision of the Nursing and Midwifery Board of Australia is confirmed. 2. The appeal filed on 25 January 2021 is dismissed. 3. Yan Wu shall pay the costs of the Nursing and Midwifery Board of Australia as agreed or failing agreement as assessed pursuant to the Legal Profession Uniform Law Application Act 2014 (NSW).

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2021

Health Practitioner Regulation National Law Legal Profession Uniform Law Application Act 2014(NSW)

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